Newly appointed Chief Justice Martha Koome will on Tuesday preside over her inaugural sitting as President of the Supreme Court of Kenya.
The Supreme Court is now fully constituted following Chief Justice Koome’s appointment and that of Justice William Ouko and is set to hear 20 cases being 19 appeals and two references, between July and October 2021.
Among the cases the Supreme Court will handle when it holds a virtual sitting is the now well-known Muruatetu case, which featured prominently during interviews for the position of Chief Justice.
The case is back in court for application directions following various application of its principles in the Court of Appeal, High Court and Magistrate’s Courts.
As the precedent setting court, the Supreme Court has a responsibility to ensure that it decisions are understood by the courts below it to guarantee consistent and predictable application of the law.
The Muruatetu case came to fore in December 2017 when the Supreme Court ruled that Section 204 of the Penal Code was inconsistent with the Constitution to the extent that it provided for mandatory death sentence for murder taking away judicial discretion to consider mitigation before sentencing in murder cases.
This will be the first time that the court applies the principle of structural interdict which is a supervisory order through which a court directs compliance with its order.
Discourses before the court are clear that the decision did not outlaw the death penalty, which is still applicable as a discretionary maximum punishment.
Instead, it only considered the consistency of Section 204 of the Penal Code to the Constitution as far as it imposed a mandatory sentence taking away imperative judicial discretionary power in imposing sentencing.
The court ruled that mitigation was an essential prerequisite of a fair trial process which is a guaranteed, inalienable right under the Constitution.
Convicts sentenced under the minimum mandatory sentences, including robbery with violence and sexual offences, have since jammed the courts seeking sentence re-hearing.
The Attorney General appointed a Taskforce to set up a framework to deal with sentence re-hearing of matters determined under the impugned Section 204, which filed its report on October 11, 2019. The report noted there were disparities in the length of imprisonment of offenders committing same offences in more or less similar circumstances.
In September 2020, the Court of Appeal allowed 120 applicants who were on the death row or facing life imprisonment to withdraw their appeals to pursue re-sentencing. Since the landmark Muratetu case, statistics show more 500 appeals have been withdrawn, with convicts opting to seek re-sentencing.
The impact of this case on the criminal justice system is a monumental indicator of CJ Koome’s task as the President of Kenya’s highest court. Her task will be to direct the court’s collegial operations and to ignite the character of the court with fresh judicial philosophy.
CJ Koome, who assumed office a month ago, is Kenya’s third Chief Justice since the promulgation of the Kenya Constitution in 2010.
She joined the High Court in 2003 following several successful decades in legal practice and civil society work before she was elevated to the Court of Appeal in 2011.
As Chief Justice, her focus is to enhance broader society-wide access to justice, particularly clearing the existing backlog of cases to ensure that courts operate in real-time.
Her judicial efficiency is impeccable having led court stations in Nakuru, Nyeri, Kitale and Malindi to clear case backlog by establishing collaborative judicial structures to manage and facilitate court users.
Koome is Kenya’s first female Chief Justice and one among only five in Africa. She assumes the tripartite Constitutional role of Chief Justice, Chairperson of the Judicial Service Commission and President of the Supreme Court. She also holds numerous statutory responsibilities including Chairing the National Council of Administrative Justice and the Kenya National Council for Law Reporting.
CJ Koome’s assumption of office signals a positive drift for the Judiciary which has struggled to finance its operations owing to inadequate resourcing.
CJ Koome, a natural diplomat with calm charm and sharp intellect hopes to actualise the delicate collaborative government approach guided by the founding clauses of the Constitution.
Her priorities during the first 100 days in office include restructuring caseload status tracking and actualising the Judiciary Fund which will infuse predictive resourcing and planning.